Aiding and Abetting to a First Degree Premeditated Murder in California

In People v. Chiu (2014) 59 Cal.4th 155, the court held "an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine." (Id. at pp. 158-159.) The court explained although first degree and second degree murder share the common elements of an "unlawful killing of a human being with malice aforethought, . . . first degree murder . . . has the additional elements of willfulness, premeditation, and deliberation which trigger a heightened penalty"; "that mental state is uniquely subjective and personal"; and "the connection between the defendant's culpability and the perpetrator's premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine." ( Id. at p. 166.) In Chiu, the instructional error clearly was not harmless. The court held "reversal is required unless there is a basis in the record to find that the verdict was based on a valid legal ground." (Ibid.) This was not the case in Chiu. The jury's questions reflected that the jury initially was deadlocked on whether the defendant should be found guilty of first or second degree murder. Further, a holdout juror specifically expressed difficulty with the aiding and abetting principle and with "putting an aider and abettor in the shoes of a perpetrator." Upon removal of that juror, the jury found the defendant guilty of first degree murder. (Id. at pp. 167-168) The court in Chiu found these factors "indicated that the jury may have been focusing on the natural and probable consequence theory of aiding and abetting and that the holdout juror prevented a unanimous verdict on first degree premeditated murder based on that theory." (Id. at p. 168.) Accordingly, the court could not conclude "beyond a reasonable doubt that the jury ultimately based its first degree murder verdict on a different theory, i.e., the legally valid theory that defendant directly aided and abetted the murder." (Ibid.) The Chiu court expressly concluded its holding does "not affect or limit an aider and abettor's liability for first degree felony murder under section 189." (Id. at p. 166.)